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Inspired by Lionel's question, I have looked at the way in which "restitution" is used in UK statutes. I'm not entirely sure what lay behind his comment, but no doubt he'll tell us if he thinks it's worth hearing.

My enquiry turned up 38 distinct statutes, some of which use the word more than once. It did not turn up the provision Lionel quoted (no doubt because, as he says, it is not yet in force), but it turned up the remarkably similar Financial Services Act 1986 s 6, on which the new provision is doubtless based. I can send the edited results of the search as a WORD file to anyone who wants it, but here is the headline version.

Numbers in (brackets) refer to the list of cases at the end.

The word "restitution" seems to be used in 3 different, if overlapping, senses:

A. As a general reference to a general type of liability. These references are all in statutes dealing with civil liability in a very broad-brush way, mostly in the context of jurisdiction.

eg (11) : "any liability in contract, tort or bailment and any liability arising out of an obligation to make restitution"

eg (14) : "... a civil claim for damages or restitution ..."

B. Slightly more specifically, in the sense of "restoring matters to the way they should be" -

eg (20): "... restitution of conjugal rights ..."

eg (34): "... restitution of the surface ..." [ie making good damage done by gravel extraction]

eg (35): referring to a salvage award.

C. More specifically still, in the sense of "restoring property to its rightful owner". This is the most common meaning. Sometimes the statute means returning property which all along belonged to the claimant (eg 1, 31), sometimes it implies some sort of re-vesting (eg 2, 23, 27, 36), and sometimes it means the return of a payment which (presumably passed property in the money but) should never have been made in the first place (eg 4, 6, 12).

The interesting question is, what if the property can't be restored, for one reason or another? If a remedy is available regardless, is that remedy "restitution"? The drafters realise that they have to spell out precisely what should happen in such a case, but apparently aren't too bothered whether they label the result "restitution" or not. So "restitution" has been used to refer to:

(3): "... restoring the parties to the position in which they were before the payment ...".

(8): "the court may ... require the defendant to transfer to the plaintiff any property acquired by the defendant under the contract, or any property representing it".

(24): elaborate treatment of thieves apprehended with property on them. Note that by s 28(1)(c) "restitution" may include payment to his victims out of the thief's own money.

(29): where property is stolen from the Navy, an order for return of the property is "restitution", but an order sweeping up the monetary consequences is "compensation".

In these cases, the availability or extent of the remedy often depends on discretion.

eg (3): "... such steps as the court may direct ..."

eg (8): "... if it is just and equitable to do so ..."

eg (24): "... the court may order that there shall be paid ... a sum not exceeding the amount paid for the purchase ..."

So, given the variation in the way the term "restitution" is used, I'm not sure I see Lionel's difficulty, if he has one. Is he referring to the fact that the word is defined specifically for a limited purpose? Is he referring to the fact that it can require the court to ask about both loss and gain? Is he referring to the point that it is discretionary? None of these 3 matters make the usage in the statute exceptional.

Table of cases

1. Appropriation Act 1999 (c 13), sch (B), Part 2 Supplementary, 1998-99, and Part 11 Class IX, 1999-2000

2. Building Societies Act 1997 (c 32), s 38

3. Pensions Act 1995 (c 26), s 14

4. Charities Act 1992 (c 41), s 61

5. Companies Act 1989 (c 40), s 169

6. Finance Act 1989 (c 26), s 29

7. Criminal Justice Act 1988 (c 33), part XI, s 163

8. Minors' Contracts Act 1987 (c 13), s 3

9. Financial Services Act 1986 (c 60), ss 6, 51 and 61

10. Building Societies Act 1986 (c 53), ss 64, 66 and 66A

11. Insolvency Act 1986 (c 45), s 382

12. Housing Act 1985 (c 68), s 449

13. Companies Act 1985 (c 6), s 322, 322A and 341

14. Civil Jurisdiction and Judgments Act 1982 (c 27), sch 1, 3C, 4, and 8

15. Wildlife and Countryside Act 1981 (c 69), s 31

16. Criminal Appeal (Northern Ireland) Act 1980 (c 47), ss 27 and 40

17. Magistrates' Courts Act 1980 (c 43), s 39

18. Armed Forces Act 1976 (c 52), s 14 and sch 3

19. Consumer Credit Act 1974 (c 39), s 119

20. Matrimonial Causes Act 1973 (c 18), sch 1, part I and part III

21. Criminal Justice Act 1972 (c 71), s 6

22. Matrimonial Proceedings and Property Act 1970 (c 45), long title

23. Auctions (Bidding Agreements) Act 1969 (c 56), s 3

24. Theft Act 1968 (c 60), ss 24 and 28

25. Courts-Martial (Appeals) Act 1968 (c 20), s 46

26. Criminal Appeal Act 1968 (c 19), s 30

27. Uniform Laws on International Sales Act 1967 (c 45), sch 1 Chapter V, article 78

28. Perpetuities and Accumulations Act 1964 (c 55), s 10

29. Naval Discipline Act 1957 (c 53), ss 76 and 77

30. Geneva Conventions Act 1957 (c 52), s 4

31. German Conventions Act 1955 (c 2), preamble and s 1

32. Air Force Act 1955 (c 19), s 138

33. Judicial Proceedings (Regulation of Reports) Act 1926 (c 61), s 1

34. Commons Act 1876 (c 56), s 20

35. Naval Prize Act 1864 (c 25), s 40

36. Crown Private Estate Act 1800 (c 88), preamble

37. Distress For Rent Act 1737 (c 19), s 17

38. Title Act 1536 (c 11), long title

Steve Hedley

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FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE

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